MODERATOR: NORMAN DORSEN, FOUNDER AND PRESIDENT, U.S. ASSOCIATION OF CONSTITUTIONAL LAW

PARTICIPANTS: ANTONIN SCALIA, ASSOCIATE JUSTICE, U.S. SUPREME COURT;

STEPHEN BREYER, ASSOCIATE JUSTICE, U.S. SUPREME COURT

LOCATION: AMERICAN UNIVERSITY, WASHINGTON COLLEGE OF LAW, WASHINGTON, D.C.

TIME: 4:10 P.M. EST

DATE: THURSDAY, JANUARY 13, 2005

Transcript by:Federal News ServiceWashington, D.C.

MR. CLAUDIO GROSSMAN (DEAN, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW): (Off mike) -- it's my pleasure and honor to see all of you here participating in this historic event, a conversation on the relevance of foreign law for American constitutional adjudication, with the Honorable United States Supreme Court Justices Antonin Scalia and Stephen Breyer, two towering figures of the U.S. Supreme Court. Their presence alone would be enough to honor any law school and to justify this event. But today's program is especially important because it involves, among other things, the interplay between international law, comparative law, and domestic law. These issues are crucial in today's age of globalization for they relate to sovereignty, the relationship between domestic and international concerns, and ultimately our theories and concepts underlying sovereign international law and democratic government.

Our school's views are presentations of our time, like this one, as a vital component of our mission, which includes creating a domain for facilitating a better understanding of the importance of the rule of law in society. Because of the caliber of today's participants, and the nature of the issues to be discussed, this debate is perhaps the most important event thus far in advancing this goal. At the same time, I'm proud to announce that during the spring semester we will have more than 40 conferences and seminars on cutting edge topics involving our own faculty who have worked on constitutional and international law throughout the world.

Today's event is crucial also because of the importance of its co-sponsor, the U.S. Association of Constitutional Law, which is the organization that represents the Constitutional Law Faculty in this country, and of which our own noted scholar Professor Kenneth Anderson is the treasurer. Programming of academic institutions with associations of scholars, lawyers and other professionals is crucial to strengthening the necessary links between the world of scholarship and practice.

Now, please allow me to introduce Michel Rosenfeld, a founding member and president of the United States Association of Constitutional Law, the Justice Sidney L. Robinson Professor of Human Rights at Benjamin N. Cardozo School of Law in New York, and the editor-in-chief of the International Journal of Constitutional Law.

Michel, please join us here. (Applause.)

MR. MICHEL ROSENFELD: Thank you very much, Dean Grossman, and I want to thank the Washington College of Law of American University for agreeing to co-sponsor this event, and for having done such a magnificent job of organization, and of having publicized this, and the interest among students and faculty has been enormous as we have seen since we arrived in Washington. I want to, on behalf of the United States Association of Constitutional Law to thank, above all, the two Justices, Justices Scalia and Breyer, for agreeing to having this conversation, and I want to tell you a few words about our association.

Our association was created in 1996 to become an affiliate of the International Association of Constitutional Law which is an association of approximately -- that comprises lawyers and constitutional lawyers, judges, legislators, and others interested in constitutional law from about 80 countries, and that has yearly meetings throughout the world, and every four years an International Congress. The last Congress was in Chile, which is the native country of Claudio Grossman, and had more than 500 constitutionalists from 62 countries. The U.S. association was created because there was a felt need to have another organization besides the ALS Constitutional Law Section to be able to include people who are not law professors in that association. And so, I'm very proud to say that we have, as honorary members, both Justices, Justice Scalia and Justice Breyer are honorary members of our association, and we are very proud and gratified that they've accepted that. And we have, in addition, a large number of judges, federal judges, as well as state supreme court judges, as well as law professors, of course, but also professors in other fields such as political science with an interest in constitutional law, and selected practitioners.

We have had several events, and we have come to fill a need, an increasing need of exchange with other lawyers and constitutionalists from other parts of the world. The interest in comparative constitutional law, and in what is happening in other countries has increased in the United States, and I think it's a testimony to that that we have this conversation today, and that the enormous interest for it that it has demonstrated already.

I want to just say one more thing, which is that we have for a long time, in going to international meetings, I've been going to the meetings of the International Association of which I am the immediate past president for almost two decades, and there has always been a great deal of interest in what the United States, and in particular the United States Supreme Court is doing in its cases. And now, there has been, in the last few years, a little bit of interest in the opposite direction.

I would just give you one anecdote in terms of how influential the Supreme Court of the United States is abroad. First of all, many people in very important countries have told me the individual Justices on the U.S. Supreme Court are much better known in our own country than our own constitutional court or supreme court justices. It's not in every country, by the way, that the two Supreme Court Justices that are sitting with us have their picture in the New York Times front page twice, not once, as it was this morning.

And I will give an anecdote from 1989, the International Association had a meeting in Moscow in which -- and this was in the middle of Perestroika, and the Soviet Union was evolving what it didn't know perhaps was to its end. But, we were assured by the Russian constitutionalists at that meting that there was a treat deal of improvement in the Soviet Union in terms of individual rights, and that they had even adopted the Miranda rule, this was to show us that there was a real change in the Soviet Union.

Fast forward to 2001, I think, when the United States Supreme Court was hosting nine judges of the European Court of Justice, and I was fortunate enough to accompany the European judges on part of their trip, and we went to the oral argument in the Dickerson case, and the judges from the European court said, what is this about? And I said, well, the question has been raised as to whether the court should overrule Miranda. They looked at me as if this was an international institution. The United States is known throughout the world for its Miranda decision, how can that be possible.

Anyhow, we will hear today the other side of the story.

The last thing I'd like to do is to introduce Norman Dorsen, who was my predecessor, and the founding president of the U.S. Association of Constitutional Law. It has been said that the justices don't need introduction. It's very difficult to find a law professor who can match that -- what one can say the same thing about, but Norman Dorsen certainly is that person. He has been president of the ACLU, active in constitutional litigation, constitutional scholarship, and in more recent years he's been involved in the areas of comparative and international law, and creating a global law school, and in creating this association. He was the instrumental member, with Lou Henkin, for the creation of the U.S. association. And I am very proud that he has been, of course, instrumental in bringing this about, and that he will moderate this panel.

Norman, I turn the microphone to you. Thank you.

MR. DORSEN: Thanks very much Claudio and Michel. Our speakers obviously need no introduction and the only thing I'm going to say about them is they have a remarkably similar background in many respects. They both graduated with high honors from Harvard Law School. They both spend considerable time working in government after law school, Justice Scalia in the Department of Justice, Justice Breyer as Chief Counsel of the Senate Judiciary Committee. And both served for some years in the U.S. Court of Appeals, Justice Scalia in the District of Columbia, Justice Breyer in the First Circuit. Perhaps most important, they were both very distinguished law professors for many years, Justice Scalia at the University of Virginia and Chicago Law Schools, and Justice Breyer at Harvard Law School.

Please give us an introductory round of applause.

(Applause.)

Dean Grossman has already given some reasons why the subject before us is of considerable importance. I will not add to those reasons, even though there are other reasons. I do want to say that it is important to recognize that since the early 19th Century, Supreme Court cases have relied, without much fuss and fanfare, on certain foreign materials. For example, the court in 1855 said that the English Magna Carta was relevant to a case. And more recently, in the 1960s the court relied on the so-called English Judges' Rules.

Very recently a majority of the present justices, and maybe all, have written and joined opinions that rely on foreign materials, including opinions written by Justice O'Connor, Justice Kennedy, and Chief Justice Rehnquist. And one journalist was quoted as saying, there is now a new attentiveness by the Supreme Court to legal developments in the rest of the world, but not so fast. There are now and probably always have been those who oppose this internationalizing trend, unconvinced of the relevance of foreign materials to U.S. circumstances, and in particular to U.S. constitutional law. Strong voices, including most notably Justice Scalia's, have protested to what some suggest an expanding trend in U.S. constitutional law. It is important to recognize that it is not only conservatives who have taken this position. A prominent liberal law professor has recently written that any effort to import international norms into American constitutional law is largely a waste of time.

So much for my introductory remarks. This is a conversation between two leading Supreme Court justices, and I'm sure we agree that we should allow Scalia to be Scalia and Breyer to be Breyer, with very little -- (inaudible). But the justices have agreed that at the outset I should put a few questions on the table and perhaps interpolate one or more questions as we go forward.

So, what I'm going to do is state a few questions so that the justices can choose which, if any, to respond to, and begin their conversation, or, of course, they can ignore completely what I'm saying. (Laughter.) So, here are a series of questions, and then, of course, I'll turn in order of seniority, first to Justice Scalia, to respond in any way he wishes, and then the conversation can begin.

When we talk about the use of foreign court decisions in U.S. constitutional cases, what body of foreign law are we talking about? Are we limiting this to foreign constitutional law? What about cases involving international law, such as the interpretation of treaties, including treaties to which the U.S. is party?

When we talk about the use of foreign court decisions in U.S. law, do we mean them to be authority or persuasive, or rhetorical? If, for example, foreign court decisions are not understood to be precedent in U.S. constitutional cases, are they nevertheless able to strengthen the sense that U.S. assures a common moral and legal framework with the rest of the world? If this is so, is that in order to strengthen the legitimacy of a decision within the U.S., or to strengthen a decision's legitimacy in the rest of the world?

So, I turn to our distinguished guests to, as I say, respond to any or none of those points, and to make whatever comments they wish in conversation.

JUSTICE ANTONIN SCALIA: Well, most of those questions should be addressed to Justice Breyer because -- (laughter) -- because I do not use foreign law in the interpretation of the United States Constitution. Now, I will use it in the interpretation of a treaty. In fact, in a recent case I dissented from the Court, including most of my brethren who like to use foreign law, because this treaty had bee interpreted a certain way by ever foreign court of a country that was a signatory, and that way was reasonable, although not necessarily the interpretation I would have taken as an original matter. But I thought that the object of a treaty being to come up with a text that is the same for all the countries, we should defer to the views of other signatories, much as we defer to the views of agencies -- that is to say if it's within ball park, if it's a reasonable interpretation, though not necessarily the very best.

But apart from that, if you talk about using it constitutional law, you know, you talk about it's nice to know that, you know, that we're on the right track, that we have a same moral and legal framework as the rest of the world. But we don't have the same moral and legal framework as the rest of the world, and never have. If you told the framers of the Constitution that we're after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it's full of, you know, statements that make very clear they didn't have a whole lot of respect for many of the rules in European countries. Madison, for example, says -- speaks contemptuously of the countries on continental Europe, quote, "who are afraid to let their people bear arms," closed quote.

You mentioned the Miranda Rule. Well, I don't know the law in Russia. You say Russia has adopted the Miranda Rule. Has it adopted the Exclusionary Rule that goes with it? I mean, Miranda's a piece of cake, so long as -- (laughter) -- so long as you don't say that any confession that was non-Mirandized is kept out of court. The Exclusionary Rule is distinctively American. I don't -- I'm not -- I don't think there is any other country in the world that applies the Exclusionary Rule.

Now, should we say, "Oh my, we're out of step," so, you know -- or, take our abortion jurisprudence, we are one of only six countries in the world that allows abortion on demand at any time prior to viability. Should we change that because other countries feel differently? Or, maybe a more pertinent question: Why haven't we changed that, if indeed the court thinks we should use foreign law? Or do we just use foreign law selectively? When it agrees with what, you know, what the justice would like the case to say, you use the foreign law, and when it doesn't agree you don't use it. Thus, you know, we cited it in Lawrence, the case on homosexual sodomy, we cited foreign law -- not all foreign law, just the foreign law of countries that agreed with the disposition of the case. But we said not a whisper about foreign law in the series of abortion cases.

What's going on here? Do you want it to be authoritative? I doubt whether anybody would say, "Yes, we want to be governed by the views of foreigners." Well if you don't want it to be authoritative, then what is the criterion for citing it not? That it agrees with you? I don't know any other criterion to bring forward.

So, that answers none of your questions, but -- (laughter) -- but that's what I wanted to say. (Laughter.)

JUSTICE STEPHEN BREYER: He's against it. (Laughter.) I think I got my law clerk to find some case where you at least came close to citing some foreign law. (Laughter.) I'm not the -- first, I'd like to thank you for being here, for inviting us here. And I think it is important what this Constitutional Law Society is doing.

It's a -- I usually think, and I think Justice Scalia does too, that in the United States, and this is perhaps unique to the United States, or almost, law is not really handed down from on high, even from the Supreme Court. Rather, it emerges. And we're part of it, the clerks are part of it, but only part. And what really survives every time is the result, I tend to think of a conversation. I think that's the right word, conversation among judges, among professors, among law students, among members of the bar, because you need people to put things together, you need people to decide cases, you need people to tell you how it works out in practice. And out of this giant, messy, unbelievably messy conversation emerges law. And that means you have to have the conversation. And then I think we participate it, even at a general level, not just when we're deciding cases.

So, I think it's important that we get out occasionally. And we're not that well know. You may be -- (laughter). Out of the 10 times somebody asks me "Are you on the Supreme Court?" nine of them thought I was Justice Souter. (Laughter.)

JUSTICE SCALIA: And he went along with it.

JUSTICE BREYER: Yeah. (Laughter.) You want to get to the point here -- (laughter). There are so many ways, so many ways, in many of which Justice Scalia and I absolutely agree, so many ways in which foreign law influences law in the United States Supreme Court and the other courts as well. But the controversial one, I agree, and it's only one, and I think it's far from the most important -- I mean, if you want to see what is important, maybe we'll go into it later, I'll tell you about our docket last year, and you'll get a little flavor for the ways in which foreign law influences us today.

But let me get to the point, constitutional law, and what I think it illustrates is so beautifully, I was taken rather by surprise, frankly, at the controversy that this matter has generated, because I thought it so obvious. You look around to what's cited, what's cited is what the lawyers tend to think is useful. Does foreign law -- I'll give you the background.

I am at a seminar sort of like this, where they had a couple of professors, and they had a member of Congress, and a senator, and a couple of judges, and we're discussing relationships between the branches. And suddenly, the member of Congress, a very nice man, very intelligence man, started to say how terrible it was to use foreign law in decisions. I couldn't think -- what is he talking about? And then after a while it became clear, he was talking about this issue. And I said, "Well, I guess, Congressman, that's aimed at me." (Laughter.) And I said, "Well, let me tell you." What -- first, of course, foreign law doesn't bind us, constitutional law. Of course not. But these are human beings, more and more, called judges, who are human beings despite concern about that matter -- (laughter) -- human beings, called judges, who have problems that often, more and more, are similar to our own. They're dealing with this certain texts, texts that more and more protect basic human rights. Their societies more and more have become democratic, and they're faced not with things that should be obvious -- should we stop torture or whatever -- they're faced with some of the really difficult ones where there's a lot to be said on both sides. Hard to decide.

I said, "If here I have a human being called a judge in a different country dealing with a similar problem, why don't I read what he says if it's similar enough? Maybe I'll learn something." To which the congressman said, "Fine. Read it. Just don't cite it." (Laughter.) I thought, "All right."

Look, let me be a little bit more frank, that in some of these countries there are institutions, courts that are trying to make their way in societies that didn't used to be democratic, and they are trying to protect human rights, they are trying to protect democracy. They're having a document called a constitution, and they want to be independent judges. And for years people all over the world have cited the Supreme Court, why don't we cite them occasionally? They will then go to some of their legislators and others and say, "See, the Supreme Court of the United States cites us." That might give them a leg up, even if we just say it's an interesting example. So, you see, it shows we read their opinions. That's important. Then he says, "Well, write them a letter." (Laughter.) I thought I wasn't making much headway. He had a point. And the point is the point that Justice Scalia has made. How do we know we can keep this under control? How do we know we cite both side? How do we know we looked for everything? Well, I'd say that kind of a problem arises with any sort of citation. A judge can do what he's supposed to do, or not. And we hope they do what they're supposed to do. Would I try to refer to both sides? Of course I would.

And I'm not being defensive about this, so now let me defensive. I did in fact write an opinion which was a hard one for me because I didn't -- they're actually harder than they appear quite often. We have a very definite "this is what it is, this is what it is," but before you write "this is what it is," there are moments of great uncertainty. And one of them that was really, maybe still is rather uncertain for me was an opinion I wrote in a case involving the Establishment Clause and school vouchers. And, of course, one of the things I had to face from my point of view, because I thought it would cause too much dissension in society, which was relevant to my legal argument.

So, of course I had to face the fact in France they subsidize a religious school and it isn't the end of the earth. And the same thing is true in Britain, other countries. So, should I be aware of that? Yes. Should I have -- feel that conscientiously I might have to deal with that in my opinion? Yes. Is it something where I'm citing only things that favor me? Of course not. I mean, what I see in doing is this is what I call opening your eyes, opening your eyes to things that are going on elsewhere, use it for what it's worth.

So, when I see the Bowman case in the European Human Rights Court, and that Bowman case is a case involving campaign contributions and freedom of expression, and I see that in our campaign finance case it's been cited in the briefs, I say, "Wonderful. By the way, which side cited it?" Though each of them thought it favored them. Who did it favor? I don't know. But did I read it? Yeah, I looked at it. It wasn't that long. (Laughter.) Could I do that all time? I couldn't do it all the time. Should we be aware of this kind of thing? Absolutely. Do I think the real issue here is that? No. I think that they've come up in cases involving death penalty, gay rights, and abortion. And, of course, that's fed the controversy. And then -- and I understand that. But I do think it's a separate subject, and I do think on this separate subject the answer should be of course, you can't read everything. But the lawyers are interested in this, the judges are interested in it, that they'll refer to it, that they'll read it, that they'll use it as food for thought, I think is fine.

MR. DORSEN: Justice Scalia?

JUSTICE SCALIA: I don't know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is I don't know what they ought to do. What is it that they ought to do? You have to ask yourselves, Why is it that foreign law would be relevant to what an American judge does when he interprets -- interprets, not writes -- I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then.

Now, obviously if you have that philosophy -- which, by the way, used to be orthodoxy until about 60 years ago -- every judge would tell you that's what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like "due process," the "right of confrontation" and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law.

All right, if you have that theory, you can understand why foreign law is irrelevant. So he will never convert me. I just have a -- (laughter) --

MR. DORSEN: But suppose old English law tells you that the way this provision ought to be interpreted is in light of contemporary conditions, as the Commerce Clause may have, for example?

JUSTICE SCALIA: You'll find some English law that says that, and I'll use it --

Okay, what is another approach to interpretation of the Constitution? Well, you know maybe 60 years or so ago we adopted, first in the Eighth Amendment area cruel and unusual punishment the notion that the Constitution is not static. It doesn't mean what the people voted for when it was ratified. It doesn't mean that. Rather, it changes from era to era to comport with -- and this is a quote from our cases, "the evolving standards of decency that mark the progress of a maturing society." I detest that phrase, but because -- (laughter) -- because I'm afraid that societies don't always mature. Sometimes they rot. What makes you think that, you know, human progress is one upwardly inclined plane every day and every way we get better and better? It seems to me that the purpose of the Bill of Rights was to prevent change, not to encourage it and have it written into a Constitution.

Anyway, let's assume you buy into that. Okay? Still in all what you're looking for as a judge using that theory is what? The standards of decency of American society -- not the standards of decency of the world, not the standards of decency of other countries that don't have our background, that don't have our culture, that don't have our moral views. Of what conceivable value as authoritative would foreign law be? Now, you can cite foreign law to show, as Justice Breyer gave an example, to show that if the Court adopts this particular view, the sky will not fall. You know, if we got much more latitudinarian about our approach to the Establishment Clause, things won't be so bad. France, which is probably the strictest in Europe, still has a good deal of religious freedom and no establishment. Okay? It's useful for that.

But if you're looking for the evolving standards of decency of American society, why would you look to France? The only way in which it makes sense is if you have a third approach to the interpretation of the Constitution, and that is I am not looking for the evolving standards of decency of American society; I'm looking for what is the best answer in my mind as an intelligent judge. And for that purpose I look to other intelligent people, and I talk sometimes about conversations with judges and lawyers and law students. Do you think you're representative of American society? Do you not realize you are a small cream at the top, and that your views on innumerable things are not the views of America at large? And doesn't it seem somewhat arrogant for you to say, I can make up what the moral values of America should be on all sorts of issues, such as penology, the death penalty, abortion, whatever? That's the only context in which the use of foreign law makes sense, because what we're doing is not looking to history, as I do, not looking to the mores of contemporary American society, which we did for a while -- we used to see how many states had abolished, for example, in Koker -- how many states had abolished the death penalty for rape. All except one. Well, you could say we devolved. But we have put that behind us. And in our last Eighth Amendment case, eight states -- no, what was it? -- no -- 18 states out of the 38 states that have capital punishment refused to impose it upon the mentally deficient. The other states left it up to the jury as to how mentally deficient he was and whether that justified the crime, given how heinous it was. Nonetheless, we said even though only 18 out of 38, we have now reached a change in our moral perceptions. I suggest that change is based not upon the theory that you're looking for what the moral perceptions of America is, but that you're looking for moral perceptions of the justices. And I frankly don't want to undertake that responsibility. I don't want to do it with foreign law, and I don't want to do it without foreign law. I sleep very well at night, because I read old English cases. (Laughter.) And there's my answer.

JUSTICE BREYER: I think that's pretty good. I think that's really what's worrying people. And of course I think that underneath that my own views, it's really because I think, and I think many judges think, that your own moral views are not the answer; that people look other places for trying to find out in those few cases where such a thing is determinative how to find answers that aren't -- I mean, I'm tempted to say Bob Browker (ph), who is a good judge up in Massachusetts, used to say, "When I want to know what the common man thinks, I ask myself what I think, and I'm right every time." (Laughter.) That's not it. By the way, I want to keep a concession --

JUSTICE SCALIA: He was kidding.

JUSTICE BREYER: No, no, I would have registered an important concession, because we did have a case in a federalism case in which the Court was -- they said that you cannot have under federal -- I dissented -- federalism principles a federal law that is going to tell state officials what to do directly. Remember that?

JUSTICE SCALIA: Prince (sp).

JUSTICE BREYER: All right. So I said that you know that's odd -- then they'll have to build federal bureaucracies, and in Europe or in Switzerland, the one you mentioned --

JUSTICE SCALIA: You cited Switzerland, right? You cited Switzerland?

JUSTICE BREYER: That's right. And I said they think building the federal bureaucracy is the opposite of the way to do it, that federalism means that the local officials have to be able to carry out federal obligations. Now, I want to just point out that you've said some things that I take as consistent with my being right to do that. (Laughter.)

That isn't the point. The point is really death penalty, and let me get the example that's hardest for me and best for you. And it is the most dubious, but I think it's right, and I'll say why did I do this.

First, there's nothing in Blackstone, Brackton (ph), or even King Arthur that says that cruel and unusual punishment, to determine that, you cannot look except to England or except to the United States. There's nothing in any of those documents that you've been able to find -- and I bet you've been looking -- (laughter) -- that says that. All right? So, there's nothing barring me.

But let's take what's really hard. I wrote a dissent that you thought was totally wrong, and it was in from a denial of cert, and the question was this: Is it a cruel and unusual punishment to keep a person on death row for more than 20 years before executing him? Well, I said we should hear that case, and I wrote an opinion that suggested a dissent, that I thought this was quite likely, it could quite possibly -- the answer to that question would be yes. But cruel and unusual punishment -- now, where do I look? Oh, I should look to myself. If I look to myself, I might be able to get an answer much faster. I don't look to myself. I mean, can I jump out of my own skin? No. No human being can. But let's see what's around. And of course I wrote this thing -- not too convincing -- but I found opinions in the Privy Council in England where they upset Jamaica --

JUSTICE SCALIA: Reversing an earlier one of their own cases.

JUSTICE BREYER: Right, correct.

JUSTICE SCALIA: So they don't even pay attention to their own opinions. (Laughter.)

JUSTICE BREYER: Well, I -- India -- India -- they've written a pretty good opinion. There was one in Canada. The U.N. had discussions on this. And they weren't all one way. And I cited things the other way too, anything I could find. And then I think I may have made what I call a tactical error in citing a case from Zimbabwe -- not the human rights capital of the world. (Laughter.) But it was at an earlier time -- Judge Gubei (ph) was a very good judge. So I had written this. And of course I looked -- I don't think that's controlling. But I'm thinking, Well, on this kind of an issue you're asking a human question, and the Americans are human -- and so is everybody else. And I don't know, it doesn't determine it, but it's an effort to reach out beyond myself to see how other people have done -- though it does not control.

Now, Justice Thomas then -- disagreeing -- wrote another little scrib, and he said, You see? Breyer is so desperate he can't find any American precedent -- (laughter) -- so he has to look to Zimbabwe. Now, again, there is a certain point in that. So I'd have to say I'd rather have the uncertainties and I'd rather have the judge understanding that he's looking but it's not controlling. And I'd rather have him use it with care, hoping that the judges won't lack the control to do so. Then I would like to have an absolute rule that says legally never. And the fact that I cannot find such an absolute rule -- legally never -- even in King Arthur -- gives me some cause for hope.

JUSTICE SCALIA: But let's talk about the precise case here you brought up --

JUSTICE BREYER: I said I brought up one that was hard for me.

JUSTICE SCALIA: You know, taking a long time for the death penalty -- we haven't decided it yet. It was just a denial of cert.

JUSTICE BREYER: Right.

JUSTICE SCALIA: One of the difficulties of using foreign law is that you don't understand what the surrounding jurisprudence is so that you can say, you know, "Russia follows Miranda," but you don't know that Russia doesn't have an Exclusionary rule.

And you say every other country of the world thinks that holding somebody for 12 years under sentence of death is cruel and unusual punishment, but you don't know that these other countries don't have habeas corpus systems which allow repeated applications to state and federal court, so that the reason it takes 12 years is because he continues to file appeals that are continuously rejected.

In England, before they abolished the death penalty -- and by the way, every public opinion poll in England suggests that the people would like to retain it, but maybe the judges and lawyers and law students feel differently about it. So it -- you know, it changes differently. But before they abolished the death penalty -- you know, when a death penalty was pronounced in the English courts they had a little skullcap. And when the jury comes in -- and the judge, m'lord, would read the verdict he would -- if you see him reach for the skullcap and put on the skullcap he is about to pronounce a sentence of death. And that sentence would be carried out within two weeks. So I mean that's the reason 12 years seems extraordinary to them. But it's extraordinary because we've been so sensitive to the problem of an erroneous execution, so we allow repeated habeas corpus applications. I just don't think it's comparable. It's just not fair to compare the two.

But most of all, what does the opinion of a wise Zimbabwe judge or a wise member of the House of Lords law committee, what does that have to do with what Americans believe, unless you really think it's been given to YOU to make this moral judgment, a very difficult moral judgment? And so in making it for yourself and for the whole country, you consult whatever authorities you want. Unless you have that philosophy, I don't see how it's relevant at all.

JUSTICE BREYER: Well, it's relevant in the sense that you have a person who's a judge, who has similar training, who's trying to, let's say, apply a similar document, something like cruel and unusual or -- there are different words, but they come to roughly the same thing -- who has a society that's somewhat structured like ours. And really, it isn't true that England is the moon, nor is India. I mean, there are human beings there just as there are here and there are differences and similarities. And so one is not trying to figure out the meaning, really, of the words "cruel and unusual punishment," one is trying to deal with their application.

MORE And it isn't some arcane matter of contract law, where a different legal system might have given the same words totally different application. If they weren't dealing with words like "liberty" -- and in areas where we're not dealing with words like "liberty" and "cruel and unusual punishment," by the way, we look all the time to foreign things. Nobody objects. I mean, those are the contract cases, et cetera.

So here you're trying to get a picture how other people have dealt with it. And am I influenced by that? I am at least interested in reading it. And the fact that this has gone on all over the world and people have come to roughly similar conclusions, in my opinion, was the reason for thinking it at least is the kind of issue that maybe we ought to hear in our court, because I thought our people in this country are not that much different than people other places.

Now -- so all this stuff about the different legal traditions and everything -- in that particular instance, I don't think it had that much to do with it.

Now one problem is that all the time I admit I am slightly more interested or I have more confidence in looking to practical facts, looking to see how things will end up being implemented, and ending up with a degree of uncertainty. I mean, I probably am willing to work with a certain degree of uncertainty. And I think law is filled with uncertainty all over the place. And if I thought these things could be deduced from sort of fairly clear, logical legal rules and a history book, if I thought it were possible, I would agree with you that that's a system that is more likely to be able to keep judges from -- within controls.

But you see, it don't think it's possible. I don't think it's possible, and I think it's important to look on the ground to see how other people are reacting.

Well --

JUSTICE SCALIA: Do you have another question?

MR. DORSEN: Yes. (Laughter.)

JUSTICE SCALIA: Yeah, we'll go back --

MR. DORSEN: I want to ask one question to each justice, and I'll put them both on the table and let them fight over who goes first.

JUSTICE SCALIA: Stephen and I do not fight.

MR. DORSEN: (Chuckles.) But only he -- only -- you could only --

JUSTICE SCALIA: We do not fight at all.

MR. DORSEN: Let me put it this way to Justice Scalia. Although you have suggested your view about this, I'm still unclear about what the harm or risk is of considering foreign sources that may bear on problems that are common to both countries.

For example, you mentioned the -- both of you have mentioned the death penalty.

Why shouldn't U.S. constitutional decisions take account of shifting world standards on such things as the death penalty, on the execution of juveniles, on the execution of the mentally ill? Are we that far from the rest of the world in terms of the way life is lived?

That's the question I'd put to you.

The question, Justice Breyer, is a variant of something that Justice Scalia said in his opening comments, and that is, is it fair to criticize you and other members of the court who do refer to foreign sources, even though do not consider them binding, would seem to suggest in general, or seem to refer in general to cases that support the positions that you're taking?

For example, in cases of the death penalty, in cases of abortion, in cases of other controversial issues, I'm not sure I see as many citations to East Asian courts, to South American courts, to Islamic courts. And is it a fair criticism that there's a certain selectivity that is substantively or result-oriented in the way foreign references are considered by you and those who agree with you?

JUSTICE BREYER: Yes, it's a fair criticism because we're not going to refer to as many Asian courts at the moment, though we refer to India as an Asian court, because fewer come to our attention. And that's why it's important that these things not be binding. And if you're going to develop a jurisprudence of when to refer to a non- binding decision of a foreign court, I mean, it's -- I'll agree that isn't going to work. And so if you -- that's the trouble with the legal mind; it wants to make distinctions, and it always wants to make jurisprudences out of everything, and it gets so complicated you can't do.

But it's like legislative history. That's the basis. The criticism is the same.

JUSTICE SCALIA: It sure is. It sure is.

JUSTICE BREYER: The criticism is you'll look over the party, the cocktail party -- remember Judge Leventhal said this about legislative history: Those who use legislative history, well it's like looking at a cocktail party, you look over the cocktail party to identify your friends. (Laughter.) And I say to that, well then you're not doing your job. And why would a -- that's what I said. I would refer to the cases against me that I come across as much as for me. And the fact that somebody's come out the other way in a foreign court doesn't make it any the less interesting. Maybe it's more interesting. But this is not a major thing. It's not some kind of determinative thing in dozens of cases of constitutional law; it's simply from time to time relevant. And if it becomes more than that, I don't know how it's going to work.

With the legislative history I'd say, and I'd say with this, you're a conscientious judge or you're not. And if you are going to apply it unfairly, why wouldn't you apply all kinds of things unfairly? There are plenty of opportunities to do that if you want to do it, but then if that's what you're going to do, go into some other profession, because I don't see what the reward would be in a profession like ours, the law, which prizes people being straightforward, I think, being honest and doing the job properly. You're certainly not in this for -- (chuckles) -- for the pay. (Laughter.) You're in it for the job.

MR. DORSEN: Justice Scalia?

JUSTICE SCALIA: That can't be the only explanation for not using other foreign sources, that we don't know what the other countries say. In my dissent in Lawrence, which was the homosexual sodomy case, I observed that the court cited only European law; said: Why, every European country has said you cannot prohibit homosexual sodomy.

Of course, they said it not by some democratic ballot but by decree of the European Court of Human Rights, who was, you know, using the same theory that we lawyers and judges and law students -- we know what's moral and what isn't. It had not been done democratically. Nonetheless, it was true that throughout all of Europe, it was unlawful to prohibit homosexual sodomy. The court did not cite the rest of the world. It was easy to find out what the rest of the world thought about it. I cited in my dissent the rest of the world was equally divided.

JUSTICE BREYER: But the reason that they were citing it in Lawrence was because in Bowers versus Hardwick, the court had made the claim that homosexual sodomy is almost universally forbidden. And I think -- you read this more closely than I, and it's more fresh in your memory because you wrote in the case, but I thought that the reference to Lawrence was simply an effort today, well, the court in Bowers and Hardwick had not really been as right as it thought. So I --

JUSTICE SCALIA: Well, I understand, but for whatever reason, if we said universally, yes, it's not universally, but don't just talk about Europe, let's look at the rest of the world.

JUSTICE BREYER: Why wouldn't a --

JUSTICE SCALIA: I mean, it lends itself to manipulation. It lends itself. It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. What reason -- you know, I want to come out this way. Now, I have to write something that -- you know, that sounds like a lawyer, okay?

I have to cite something. (Laughter.) I can't -- I can't cite a prior American opinion because I'm overruling two centuries of practice, okay? (Laughter.) I can't -- I can't cite the laws of the American people because, in fact, only 18 of the 38 states that have capital punishment say that you cannot leave it to the jury whether the person is mentally deficient and whether that should count. So my goodness, what am I going to use?

JUSTICE BREYER: Let me -- can I --

JUSTICE SCALIA: I have a decision by an intelligent man in Zimbabwe -- (laughter) -- or -- (laughs) -- or anywhere else and you put it in there and you give the citation. By God, it looks lawyerly! (Laughter.) And it lends itself to manipulation. It just does.

JUSTICE BREYER: Can I go into a different topic? Because I -- it's slightly -- it's still international application. But I'm curious what my colleague thinks of this because I actually do believe, which I've said several times, that this is really a very dramatic issue and so forth, but it isn't really the important issue to me. What's more important to me is the use of foreign law in dozens and dozens of much less glamorous cases.

I mean, I'd like you to think about our docket last year, and this is really addressed directly to the audience or to law schools. I mean, in -- on our docket -- of course, we had the three terrorism cases, and they had implications for foreign law, but they were very special. Put them to the side. We had a case involving the Warsaw Convention where you actually wrote, I thought, a -- I shouldn't say anything about my colleague's opinions, plus or minus, because --

JUSTICE SCALIA: You often join my opinions, Stephen. (Laughter.)

JUSTICE BREYER: Yeah, I know. Of course I do. But I mean, that was -- I was going to say a plus. I was going to say --

JUSTICE SCALIA: But only the good ones, right? (Laughs, laughter.)

JUSTICE BREYER: Yeah, right. They're all good.

JUSTICE SCALIA: (Laughs.) JUSTICE BREYER: But the -- the point is that there's the Warsaw Convention, an application there where you have to really look to other courts, as you said.

There was a case, really interesting, involving the application of the antitrust laws, the American antitrust laws, where a plaintiff in Ecuador wants to sue a Swiss company -- sorry, a Dutch company for price fixing and increased vitamin prices in a conspiracy that had involved some Americans, was mostly overseas, and can he come into an American court to recover for higher prices that was caused by the cartel in Europe? Very, very interesting and difficult how to harmonize.

A case in which a company in Los Angeles wants to get information from another company in California, and they say they want it because they want to present this information, which probably is boxes and boxes full, to the European cartel authority that, by the way, tells us we don't want it. All right?

JUSTICE SCALIA: That's right. (Laughs.)

JUSTICE BREYER: And can they go into court in discovery and get it?

A case in which the Americans, truckers, do not want Mexican truckers to come across the border, despite NAFTA. And there are questions of environmental impact statements and how do they apply, given NAFTA.

The case of -- what was her name? -- Mrs. -- you know, the one in Los Angeles who had been -- the Viennese woman who had five Klimt paintings.

JUSTICE BREYER: And there's a very tricky question of the Foreign Sovereign Immunities Act.

The case of Sosa, the Alien Tort Statute, and how, or to what extent does that apply today -- initially against pirates. Well, who is today's pirate, and how does it fit into international law?

Now, look at those cases --

JUSTICE SCALIA: One more. Add the case on -- a diversity case; whether you could get into federal court on diversity jurisdiction when the person on the other side is a corporation in the British Virgin Islands --

JUSTICE BREYER: Oh, yes. Right. Right.

JUSTICE SCALIA: Whether that corporation is a citizen of the United Kingdom. It depended on U.K. law. I don't mind looking at that, absolutely.

JUSTICE BREYER: Right. (Laughter.) Now, look, we have briefs in these cases. I mean in the antitrust cases, the government of Germany, the European Union files a brief, the cartel authority, the anti-cartel authority. And these are not briefs saying "our position is," these were briefs that really went into this issue and that were very helpful.

So what I'm saying is that this world that we live in is a world where I think it's out of date for people to teach about foreign law in a course called "foreign law." I think it's in date to teach in contract law or in tort law, because those are the cases we're getting. And that reflects the truth about the world, which is that of course business is international; of course law is more and more international; and of course, human rights, too, are more and more international. But that last subject is only a part of our agenda. So what are you learning about that? And how do we deal with that? Because the same problems arise there as what we've been -- I can't be universal. Don't be ridiculous. Sometimes I think I know nothing. Now, that's false modesty. But the -- (laughter) -- but the fact is you cannot universally know everything, and indeed, the lawyers have to tell you, and they have to find out where to look. What is a prescription? Where do you look? Is that statute of limitations? I hardly know. Or do you look at a drug store or do you look at a law library? I mean, all these things have to be taught, we have to adjust them, they have to come into our law.

All right? So I'm looking for answers there; I'm not taking a particular point of view.

MR. DORSEN: I'd like to ask one last question that you are, of course, free to evade or avoid or respond to --

The question I have is -- and it -- the question I have in my own mind is whether this question is a naive question. And that is, rather than looking at foreign courts to say Greece decided our way, the United Kingdom decided our way, X country decided a different way, another country has a different view, rather than thinking about these courts and cases in terms of the results to think about them in terms of the persuasiveness of the opinions, just as a New York court might look at a Montana decision and be influenced not by the result of the Montana court or the Wyoming court or the Illinois court but by the cogency of the arguments, by the depth of the reasoning, by the logic. And if our courts look at another country's courts and they're able to find opinions that are persuasive on the merits, why couldn't that be a way of informing our judges in a positive way?

JUSTICE SCALIA: Well, you're begging the question. I mean, your question assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says.

But even if you disagree with me, and if you think, well, no, that shouldn't be the test; the Constitution should keep up to date -- but it should keep up to date with the views of the American people. And on these constitutional questions, you're not going to come up with a right or wrong answer; most of them involve moral sentiments. You can have arguments on one side and on the other, but what you have to ask yourself is what does American society think? And the best way, the only way to determine that is certainly not to ask a very thin segment of American society -- judges, lawyers and law students -- what they think but rather to look at the legislation that exists in states, democratically adopted by the American people.

That's why it -- I'm sure that intelligent men and women abroad can make very intelligent arguments, but that's not the issue, because it should not be up to me to make those moral determinations.

MR. DORSEN: Do you want to comment on that?

JUSTICE BREYER: Well, it's not only that. I mean, look at Mrs. Bowman. Mrs. Bowman was a -- I may not remember this exactly rightly, but Mrs. Bowman, I think, was a champion of right to life. She's in Britain, and she wanted to, I think, contribute a small amount of money -- maybe it was five pounds, maybe it was 50 pounds -- to have some literature printed up a few days before the election that would have said if you are right to life, don't vote for these people. And the British law said people cannot go out and write publicity except within a very narrow campaign limit for the candidate, which this has exceeded because she wasn't giving the money to a candidate or whatever, within, say, 60 days of the election or 40 days or 10 days or whatever the time limit was.

And now the European Court of Justice -- sorry, human rights court gets Mrs. Bowman's claim that that limit on her campaign expenditure that few days before the election violated the freedom of expression that's guaranteed in the European Convention of Human Rights. Does that sound familiar, that issue? And what the lower court had said or somebody in Britain had said -- or maybe they were -- they would face this argument: my goodness, you mean the -- do you mean that Mr. Murdoch and his newspapers can say all he wants about this, but Mrs. Bowman can't say a word? Because that was written into their opinion. Does that sound familiar, those kinds of questions?

Now those are not great moral questions, or I'm just looking to their sentiment, but would I be reasonable to say I'm curious how they dealt with it? I'm not bound by it. I mean, they didn't actually have that much written about it, but I'm curious. I'm curious. Now do you want to say I shouldn't make any reference to it at all?

JUSTICE SCALIA: I -- lookit, I'm not preventing you from reading these cases.

MR. DORSEN: What I'd like now to do is turn to the -- a question period. The justices have kindly agreed to answer questions.

JUSTICE SCALIA: To take -- TAKE -- questions. (Laughter, applause.)

MR. DORSEN: I stand corrected, but I know you won't be able to restrain yourself. (Laughter.)

The -- a professor at this law school, Ken Anderson, will call on people who have questions. And speaking seriously, as Justice Scalia did say quite properly, the justices have agreed to listen, to hear the questions, but not necessarily put them in their opinions.

JUSTICE BREYER: Or answer them. (Laughter, laughs.)

KENNETH ANDERSON (professor, American University Washington College of Law): Thank you. The way that we will do this is I'll ask those who are asking questions one at a time to come to either one of the two mikes, depending on which side of the room that you're on. And we will start actually with Professor Rosenfeld, if you'd like to use the mike right here. I will also introduce a couple of questions which have come from the rooms where the video monitors are as well, and I have selected a couple of questions out of those.

Q Thank you very much.

I would like to, if I may, ask actually one question of -- is this a -- can I be heard with this? Okay.

MR. ANDERSON: I think, Michel, you may have to be next to that microphone in order for it to go through the C-SPAN feed.

Q Okay. I'd like to ask one question to each justice, which of course they're free not to answer, or to ignore completely.

And let me put it this way. Listening to Justice Scalia, I have a sense that except for the question of the sentiment of the American people, his position has very little to do one way or another with foreign materials. Basically, as an originalist, Justice Scalia wants to know what the Constitution meant in -- when it was adopted, and anything other than that is really not -- should not be relevant.

Therefore, I assume if we had a -- historians found reliable and convincing -- in a convincing way that the framers had the intention of incorporating or being inspired greatly by French law or Dutch law of the 17th or 18th century, Justice Scalia would certainly look to that foreign source, as an originalist.

The same thing in terms of the moral issues, in the broad sense, except those that deal with consulting the sentiment of the American people.

It seems to me that there are liberals who have certain moral views, and there are others who have different moral views, and Justice Scalia rejects, as far as I can tell, the, let's say, liberal view on X, Y or Z; that's not proper constitutional -- as not a proper constitutional matter. Whether it's American or foreign, it doesn't matter.

So my question to Justice Scalia is this. You've said that 60 years ago originalism was basically not abandoned, but at least is less important in decisions today. And I think every justice has to deal with the issue of precedent. And in the Supreme Court, precedent is not binding, in the sense that your court can overrule its own precedents. So the question is -- let me ask the following hypothetical. (Laughter.) Suppose your court had never had a -- I mean, a two- -- okay, just real quickly --

MR. ANDERSON: Yeah, please.

Q -- never had any jurisprudence on abortion, and all of the abortion jurisprudence, including your own opinions, were by Canadian judges. Would there be any interest or would there be any point in reading that, in looking at it, as well reasoned, not well reasoned, helpful or not helpful in developing doctrine?

And if I may very quickly ask Justice Breyer a question, the question to Justice Breyer: You've mentioned the example of the French allowing the state to subsidize religious schools, and the -- and I know you are very familiar with the situation in France. But another justice or another judge may not be as familiar with the French situation as you are. It's in a totally different context. In other words, in France, there is much less religiosity than in the United States. The French people seem to be much less religious. French institutions are often very anti-religious. And therefore, one would argue that there is not a same risk of perception of the government fostering religion in France than there would be in the United States.

The general question is, isn't there a problem in using the foreign materials that there is no way that a human being who is a judge in one country can have sufficient background information about another country to incorporate or to cite the jurisprudence of that other country? Thank you.

JUSTICE SCALIA: Okay. You remember my question? (Laughter.)

Q (Off mike.) (Laughter.)

JUSTICE SCALIA: I wouldn't look to Canadian law. On the question of abortion, as an originalist, I would look at the text of the Constitution, which says nothing about the subject either way. You know, both sides would like me to resolve it constitutionally. I look at the text; it says nothing about it. And I look at 200 years of history; nobody ever thought it said anything about it. That's the end of the question for me. What good would reading Canadian opinions do, unless it was my job to be the moral arbiter, which I don't regard it as?

I regard the Constitution as having set a floor to American society. That floor says nothing about abortion. It's not the job of the Constitution to change things by judicial decree; change is brought about by democracy. Abortion has been prohibited. You want to change that? American society think that's a terrible result? Fine. Persuade each other about that, pass a law and prohibit -- eliminate the laws against abortion.

I have no problem with change. It's just that I do not regard the Constitution as being the instrument of change by letting judges read Canadian cases and say, "Yeah, it would be a good idea not to have any restrictions on abortion." That's not the way we do things in a democracy. Persuade your fellow citizens and repeal the laws. Why should the Supreme Court decide that question?

JUSTICE BREYER: As to -- I think about what my job is every day. My job each day is I read and I write. I'm at the word processor. I told my son when he was in school, if you do your homework well, you'll get a job where you can do homework the rest of your life. (Laughter.)

What am I reading? Contrary to, perhaps, someone's impression, I am not out there reading the arcane edicts of Covair (ph). I am reading briefs. Briefs all the time explain law to me that I don't know. One of the hardest laws I've ever had to have explained was the property law in Louisiana, which was relevant to the interpretation of an ERISA provision. And it never got right until I read a brief by the California Property Bar Section or something, and they explained it beautifully.

So you never know where you'll get your explanation. And obviously, we're going to have to have more and more explanation of foreign law too, because it's going to be in there in those discovery cases, and it is in there in the antitrust cases, and it is in there with the EPA and NAFTA and the interaction, and we're going to have to know it.

And the people who are going to explain that to us are going to be lawyers and they're going to have to give us a clue as to what is important and what isn't. So we're going to have to know it. And this -- quite honestly I've said 50 times -- is but the sort of glamorous icing on the cake. If there are important and interesting matters, they'll be pointed out to us. All right?

Now, my second point about my job is this: Of course no judge thinks he's there to advance a political point of view, and no judge thinks that he or she is there to advance an ideological point of view. And if I catch myself saying, "I'm doing this because I think it's morally good," then I think to myself, that's not my job. That doesn't mean I'm there to foment evil -- (laughter) -- but it does mean -- (laughs) -- what I'm there for is in fact to follow the law.

I believe that all of us -- Justice Scalia, Justice O'Connor, Justice Thomas, the Chief, everyone -- has in a sense quite a similar framework that fits most legal cases. All of us look to texts, all of us are interested in history, all of us are interested in tradition, all of us are interested in precedent, all of us, in fact, want to understand the value or purpose that underlie the law, and all of us are interested in how our decision -- how it will turn out in terms of the consequences viewed through the prism of that value or purpose. But there are differences, I think, in the weights that different judges tend over time to give those elements in different cases.

So that's why I think it's important not to overstate the differences. There are differences, but as law students or professors or judges or practitioners, the similarities are far more important, and I've seen that in my life, in whatever -- are far more important than the differences.

MR. ANDERSON: Let me take a couple of hands of anybody who would like to --

Q I have a question.

MR. ANDERSON: Go ahead, please. If you'd come to the microphone and speak into, please, both microphones in order that it can be heard both in this room and also in the television feed.

And Jamin Raskin, next.

Q Mine will be very brief. I have -- had an answer before I came and I think I still have it. The Bicentennial Commission, you remember, did millions of these constitutions and sent them all over the world.

JUSTICE SCALIA: Could you speak a little more slowly. It's hard to hear because of the microphones.

Q Okay, my question is: Article VI of the Constitution of the United States says that the Constitution and the laws made under it shall be the supreme law of the land and that judges and courts in every state will follow the Constitution.

When you took your oath, when I took my oath, and when President Bush takes his oath next week, the oath is not to defend the United States, it's to defend the Constitution and protect the Constitution.

What is the answer to the -- to my question, because the Constitution doesn't say and the oath doesn't say that we protect and defend the Constitution as interpreted by a judge in Zimbabwe or Jamaica or India. I'm very curious as to how that's justified. Thank you.

JUSTICE BREYER: Well, of course, no one thinks that you do. I guess that's my -- to me. But, I mean, I've tried to explain over the last hour or so that of course I think I'm interpreting the Constitution of the United States. But just as, for example, if in fact in some foreign country it had turned out that when they -- I mean, that's why I gave the federal. If, in fact, it showed that a particular legal decision, a particular interpretation of a similar word, had led to total suppression of all speech, should I not take that into account in interpreting the word "freedom of speech" or applying it in the United States?

Do you think things outside the United States cannot be relevant to an understanding of how to apply the American Constitution? That's what's at issue. What is at issue is the extent to which you might learn from other places facts that would help you apply the Constitution of the United States. And in today's world, as I've said, where experiences are becoming more and more similar, I think that there is often -- not a lot, not always -- but in a finite number of instances there is something to learn about how to interpret this document, this document -- which I don't happen to have in my pocket, but I thought I might, which would be quite dramatic. (Laughs; laughter.) That's all right. But that's the document, I'm interpreting that document. And to think that one might learn from other countries in how best to apply this American Constitution is something I think -- I've been reading about the Founding Fathers, and I think Franklin and Hamilton and Jefferson and Madison and maybe even George Washington all would have thought that we, on occasion at least, can learn something about our country and our law and our document from what happens elsewhere.

MR. ANDERSON: And I'm going to hold it at these three questions.

I'm sorry, go ahead.

JUSTICE SCALIA: Yeah, can I respond to that, please?

MR. ANDERSON: Please.

JUSTICE SCALIA: I doubt it. (Laughter.) You know, it's a Constitution that contains phrases of great generality such as due process of law.

Now if you're following an originalist approach, you ask, what did the framers believe constituted due process of law? And if you find something there and I don't like it, it's too bad; I am chained. I -- because of my theory of the Constitution, that's what due process was and that's what it is today, unless you amend it. Whereas if you just say due process of law is an invitation for intelligent judges and lawyers and law students to imagine what they consider to be due process and consult foreign judges, then, indeed, you do not know what you're saying when you swear to uphold and defend the Constitution of the United States. It morphs. I mean, under our current Constitution, changes.

MR. ANDERSON: Professor Raskin?

Q Justice Scalia, I wonder how serious we are about not subjecting U.S. citizens to the constitutional reasoning of foreign courts, and I think this is going to become a big issue with Internet defamation lawsuits, which are all the rage right now and have very troubling implications for the First Amendment. Some Americans are being parodied by U.S. newspapers or magazines, then they rush abroad to a foreign court, which rules that they've been libeled, something that could never take place under our First Amendment jurisprudence of The New York Times versus Sullivan, Hustler versus Falwell. Now there's nothing you can do to stop foreign courts from claiming jurisdiction over Americans just because their written material is online, but should American courts cooperate with these illiberal policies by enforcing foreign judgments against Americans for speech that would definitely be protected here in the U.S.?

JUSTICE SCALIA: Listen, the one thing you know for sure is that we'll get it right. (Laughter.)

MR. ANDERSON: Professor Schwartz?

Q I'm a little embarrassed because my comments really are not in the form of a question because I think that the heart of the issue is really the function of the judge. Justice Scalia I think is absolutely right. He said it many times. The question is, what is the role of the judge? And there is a very sharp disagreement here.

I would suggest, however, that contrary to Justice Scalia's view, the original intent theory is the novel one. The Weems case, which has notions of evolving standards, goes back to 1908. It was pretty much reaffirmed in the '30s. And the original intent notion really developed in the '70s. The fact is, I don't think you'll find much about original intent until you go back to Dred Scott, which is a decision based on original intent, as is, to a large extent, the Bradwell case, which says that Illinois can exclude women from the bar.

I think, unfortunately, that response -- by the way, Alexander Hamilton said we should pay attention to the judgments of other nations. And when Madison was preparing for the Constitutional Convention, he read everything he could get his hands on about other governments. That doesn't mean that when we read this stuff, we have to buy it, but I think it means that we should try to learn. But that all depends on the function of the judge.

JUSTICE SCALIA: And in writing one, of course you consult foreign sources, see how it's worked, see what they've done, use their examples and so forth. But that has nothing to do with interpreting it.

As far as evolving standards of decency, that does not come from 1908. It comes from a case in the '50s involving --

JUSTICE BREYER: Trop.

JUSTICE SCALIA: Yes. Trop versus Dulles. And if you think -- if you -- all you have to do is to read the commentaries of Joseph Story to understand what the original interpretation of the Constitution was. It is unchanging. It is a rock to which the polity is anchored. I mean, the notion that -- and as for Dred Scott, Dred Scott was the first originalist case? You know what Dred Scott was? Dred Scott was the first case to use the horrid term "substantive due process," which has been the -- you know, the source of all of the inventiveness of the Supreme Court in developing an evolving standard of decency. So that's the answer to that question. (Laughter.)

JUSTICE BREYER: But I would like to add something, because I don't agree with you, Herman, that it's really a difference over the role of the judge. I think that it would be surprising if you could really get a psychoanalyst, that you would discover maybe we agree much more on the role of the judge than people think, and maybe there are a lot of other people who don't agree with me in this room.

But --

JUSTICE SCALIA: We're talking about a narrow category of cases, Stephen, and I agree with --

JUSTICE BREYER: Yeah. Now -- that's right. No, but it isn't just that.

JUSTICE SCALIA: Yeah.

JUSTICE BREYER: I think there is a difference, and it's -- see what you think. I mean, this is -- all want to -- see this difference. I think in a lot of areas of the law, the following shows up. It's not about the role of the judge. The judge is to apply the law. But there is a concern that if -- and this is just an example of that -- that if there are too few rules and too few clear approaches as to what goes and what doesn't go, what you will discover is judges -- and remember, a judge is a person who's been entrusted in a democratic society with power, although that judge is not elected.

So if in fact you give judges too many open-ended procedures, rules and practices, what you will discover is that a man, a woman who suddenly has this power, for better or for worse, maybe unconsciously, maybe not even wanting to, will substitute her judgment, his judgment, for the judgment of the legislature. And that's wrong in a democracy.

And everyone recognizes that's a problem, but there is a divergence as to how much we can do about it. And some say that the price of trying to cabin that with very strict procedures, legal rules and processes is not worth the candle. You can control, but the law will become too divorced from life.

And there are those who say that isn't the greater danger, the greater danger is the danger of the substitution of the unelected judge as a decision-maker for the elected parliamentarian congress -- member of Congress. And I think there is no way, actually, to resolve that. I think that both groups of people are appealing to consequences in support of a way of approaching the Constitution that they believe, on balance, will achieve objectives that everyone wants. No one wants to divorce the law from life, and nobody wants undemocratic judges substituting their view for that of the legislature. And that's why this is a very good discussion. It's a discussion because it promotes discussion. And I think only by -- as I've said, by promoting that and getting people to debate this kind of question will you get the system to move towards possibly better answers.

MR. ANDERSON: Professor Niles.

Q I apologize in advance for asking two questions.

MR. DORSEN: Please, please limit yourself to one.

Q I will. But you don't get this chance every day.

MR. DORSEN: Well, I want to make sure --

MR. : -- to get a chance to ask one. (Laughter.)

Q I know. Very quick. Justice Breyer, to you first. The question that Justice Scalia asked about -- which I thought was a very good question, which I don't -- I'm not really sure if I heard an answer to, which is great, go ahead, read all these things as much as you want, but why do you have to put them in your opinions. I'd be interested to hear a response to that, because I think all of your arguments are very strong in terms of the usefulness of reading this material, but they don't necessarily translate -- but -- maybe there was an answer.

But slightly longer, to Justice Scalia, why does English law, British law, get special treatment in your analysis of the way we should treat foreign law? And I ask that because I guess there are a couple of reasons why it would; our history and connection as former British colonies as a country might justify it. But we fought a war for seven years to extricate ourself from that government for various reasons, some of them very substantive, that would suggest not accepting sort of British laws as the image of what we should do. I guess that maybe a second reason would be well, we have more of a social and cultural history connection with England, which we certainly do, but we also have a social and cultural history to about every other country in the world, given the nature of our immigration status.

So, for example, at a question like how we should treat state governments in terms of lawsuits against them, seeking some sort of civil liability on the part of the governmental entity, why should we look to the way the British have thought about sovereign immunity as a tool for understanding the way we should think about it, given the differences and the disconnection that we have over 200 years and a whole seven-year war between ourselves and the British?

So --

JUSTICE SCALIA: I wouldn't -- I don't use British law for everything. I use British law for those elements of the Constitution that were taken from Britain. The phrase "the right to be confronted with witnesses against him" -- what did confrontation consist of in England? It had a meaning to the American colonists, all of whom were intimately familiar with my friend Blackstone. And what they understood when they ratified this Constitution was that they were affirming the rights of Englishmen. So to know what the Constitution meant at the time, you have to know what English law was at the time. And that isn't so for every provision of the Constitution.

The one you mentioned -- what does sovereignty consist of? -- that is probably one on which I would consult English law, because it was understood when the Constitution was framed that the states remained, at that time in 1789, separate sovereigns. Well, what were the prerogatives of a sovereign, as understood by the framers of the Constitution? The same as was understood by their English forebears.

So that's why I would use English law -- not at all because I think we are still very much aligned legally, socially, philosophically with England. That's not the reason.

JUSTICE BREYER: I don't normally put these things in. Sometimes I do if I think they have some significance in my thinking and it will be useful to people. I think an opinion should be as transparent as possible. And for reasons of transparency, if I thought it was helpful I might put it in. And also I probably think that -- but these are not major things in the opinion. But occasionally it can help (to ?) show some of the other countries, as I said. But I think transparency is important in an opinion.

MR. ANDERSON: Last question that we're going to take is actually from outside this room. There are many people who are actually in other rooms in the building, and I've taken one question out of the ones that have been passed up here. So this will be the last question. And it is that Justice Scalia has raised the concern, and has really put centrally, the concern that citing foreign law is an invitation to judicial elites to impose their own moral and social views.

MORE And yet neither Justice Scalia nor Justice Breyer has directly addressed a deeper concern about these materials; namely, that's it's not about elite imposition as such, but instead that these legal materials have no democratic provenance, they have no democratic connection to this legal system, to this constitutional system, and thus lack democratic accountability as legal materials.

Let me put that out as a question, I guess.

(Pause.) (Laughter.)

JUSTICE SCALIA: They're your materials; you defend them. (Laughter.)

JUSTICE BREYER: I mean, it's an interesting point. You're always referring to materials, even if it's Blackstone or whoever. The material doesn't have to have a democratic base. You reason all the time. You read law professors. They're not elected. (Laughter.) I mean, to try to understand, to try to understand, it's not necessary that the origin of the material be democratic. That's normal, and of course these, where they're relevant, it's an effort to understand.

But there is a deeper meaning to that question which is very interesting to me, very interesting. When people think about the foreign court institutions, it's sometimes very hard for -- say for Europeans, to understand why Americans sometimes react negatively, so negatively to the thought that some foreign judges would be able to tell Americans what to do. They find that hard to understand, because they're judges, after all.

I've even been saying -- I haven't said about telling us what to do, but I have pointed out that they're judges. But you can understand it; there is something deep in this reaction, and not entirely bad. And it comes back to our being a democracy, as the questioner said.

One of the most interesting phrases that I read -- to me -- in Madison is, if I can remember it -- and as I bring up at this moment, I usually forget the quotation -- but he said the American Constitution is a document of power granted by liberty, not a document of liberty granted by power. And what he's driving at is even if we end up at the same place as many European countries, the whole theory of our country is that power originates in the people and whatever power government has is delegated by those people; while in many foreign countries, even if they end up at the same place, it has been liberty that has initially been granted by a central power, whether it started out as a king or even a democratic government.

That changes the cast of mind, and it helps to explain why it's so deep in America to say, "But who are those people? We had no say. We had no say in them, in their position." And so every time I hear a criticism of my own position, which is that we should pay attention to what they say, I stop myself from complaining -- too much -- by thinking at bottom there is something good reflected here. At bottom, there is reflected a very strong American belief that all power has to flow from the people and we have to maintain a check. That's a good thing.

But, of course, I don't think it stops me from looking at the foreign opinions -- (laughter) -- and even citing them. (Applause.)

MR. DORSEN: Justice Scalia.

JUSTICE SCALIA: I think it's fine to conclude on something that we undoubtedly agree upon. (Laughter.)

MR. DORSEN: Well, that implies that you're not interested -- perhaps you are -- making a final statement of any kind?

JUSTICE BREYER: No, I made it.

JUSTICE SCALIA: No.

(Laughter.)

MR. DORSEN: Well, the final word is going to be with Dean Grossman. But before he comes up, I think we all should thank our two justices. (Applause.)

: JUSTICE SCALIA: Well, I understand, but for whatever reason, if we said universally, yes, it's not universally, but don't just talk about Europe, let's look at the rest of the world.

JUSTICE BREYER: Why wouldn't a --

JUSTICE SCALIA: I mean, it lends itself to manipulation. It lends itself. It invites manipulation. You know, I want to do this thing; I have to think of some reason for it. What reason -- you know, I want to come out this way. Now, I have to write something that -- you know, that sounds like a lawyer, okay?

I have to cite something. (Laughter.) I can't -- I can't cite a prior American opinion because I'm overruling two centuries of practice, okay? (Laughter.) I can't -- I can't cite the laws of the American people because, in fact, only 18 of the 38 states that have capital punishment say that you cannot leave it to the jury whether the person is mentally deficient and whether that should count. So my goodness, what am I going to use?

JUSTICE BREYER: Let me -- can I --

JUSTICE SCALIA: I have a decision by an intelligent man in Zimbabwe -- (laughter) -- or -- (laughs) -- or anywhere else and you put it in there and you give the citation. By God, it looks lawyerly! (Laughter.) And it lends itself to manipulation. It just does.

If you told the framers of the Constitution that we're after is to, you know, do something that will be just like Europe, they would have been appalled. And if you read the Federalist Papers, it's full of, you know, statements that make very clear they didn't have a whole lot of respect for many of the rules in European countries. Madison, for example, says -- speaks contemptuously of the countries on continental Europe, quote, "who are afraid to let their people bear arms," closed quote.

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